Establishing Durable Power of Attorney

UPDATED: Jul 17, 2023Fact Checked

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 17, 2023

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UPDATED: Jul 17, 2023Fact Checked

You may have heard the phrase, but what exactly does “durable power of attorney” mean? To understand what durable power of attorney is, you may first want to consider the definition of power of attorney, and the various forms of power of attorney that are available.

What is Power of Attorney?

Power of attorney essentially refers to a legal maneuver in which you appoint, through legal documentation, another person or an organization to represent you in your affairs if you cannot represent yourself. The person to whom you assign power of attorney is known as your “agent,” or “attorney-in-fact.”

What are the Different Types of Power of Attorney?

There are several types of power of attorney:

  • General Power of Attorney: Your attorney-in-fact serves as your agent in a variety of circumstances.
  • Specific Power of Attorney: Your agent acts for you only in very specific instances that are specified in your grant of authority.
  • Health Care Power of Attorney or Medical Power of Attorney: Your attorney-in-fact makes health decisions for you in the event that you are unable to make those decisions for yourself. He or she does not make other decisions or deal with other aspects of your affairs.

What is Durable Power of Attorney?

Each of the above types of power of attorney – general, special, and health care – can all be made “durable” by adding specific legal terminology. These terms mean your power of attorney will remain in effect in the event that you become (or are) mentally incompetent. If you do not specify that a power of attorney is durable, it can become invalidated once you become incapable of making decisions on your own, which is the very time you may need it most.

Why Should I have Power of Attorney?

Opting for power of attorney is a very weighty decision, as it gives your future agent tremendous power over your affairs and your estate in the event that you are ill, become ill, or expect that you will lose your ability to make decisions on your own behalf.

Your attorney-in-fact will be able to sell what you own, take money out of your bank accounts, make life and death decisions for you, and otherwise have great control over your life, so make sure that you choose someone you can trust to honestly and effectively act on your behalf. Clearly define which form of power of attorney you want. For example, you may want your agent to act on your behalf only regarding medical affairs, if you are unable to do so.

How Do I Establish Durable Power of Attorney?

To establish durable power of attorney, you need to get the documentation from your attorney or from a site offering online legal forms. These forms vary from state to state, so make sure you are completing the appropriate form. Once you have completed the forms, signed, and filed the necessary documents, the durable power of attorney takes effect, and will remain in effect until you sign a document to rescind it.

How an Estate Planning Attorney Can Help

When it comes to such an important matter as establishing durable power of attorney, you don’t want to run the risk of making a mistake by handling the filing on your own. To make sure you properly complete all requirements to establish durable power of attorney, you might want to consider getting the help and advice of a qualified estate planning attorney. An estate planning attorney can draft a durable power of attorney document that covers all of the essentials and that will stand up in court if challenged.

Case Studies: Establishing Durable Power of Attorney

Case Study 1: Protecting Financial Interests

John established a durable power of attorney, granting his sibling Sarah authority over his financial decisions if he became mentally incompetent. Sarah had access to John’s bank accounts, investments, and properties, with provisions in place to prevent misuse. John also obtained insurance coverage, such as fidelity bonds, to protect against fraudulent actions by his attorney-in-fact.

Case Study 2: Ensuring Healthcare Decisions

Emily appointed her daughter Rachel as her attorney-in-fact for healthcare decisions. Through durable power of attorney, Emily outlined her preferences for medical treatments, end-of-life decisions, and long-term care. She also obtained long-term care insurance to cover potential healthcare expenses in case Rachel needed to make decisions related to her care.

Case Study 3: Protecting Real Estate Assets

Michael and Lisa established joint durable power of attorney and appointed their friend David as their attorney-in-fact for real estate matters. David was responsible for managing and selling their properties. They included provisions that required David to obtain liability insurance coverage, protecting against property damage or legal claims.

By establishing durable power of attorney and incorporating specific provisions and insurance coverage, individuals can protect their interests and ensure their wishes are honored in the event of incapacity.

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Jeffrey Johnson

Insurance Lawyer

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Insurance Lawyer

Mary Martin

Published Legal Expert

Mary Martin has been a legal writer and editor for over 20 years, responsible for ensuring that content is straightforward, correct, and helpful for the consumer. In addition, she worked on writing monthly newsletter columns for media, lawyers, and consumers. Ms. Martin also has experience with internal staff and HR operations. Mary was employed for almost 30 years by the nationwide legal publi...

Published Legal Expert

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

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